Bates v. City of Des Moines , 201 Iowa 1233 ( 1926 )

I. Keosauqua Way was paved, and in the schedule of special assessments for the cost was a proposed levy against two lots belonging to the plaintiff. The district method of assessment was not adopted. A parallel street intervened 1. MUNICIPAL between plaintiff's lots and Keosauqua Way. The CORPORA- trial court annulled the assessment as in TIONS: violation of Section 6012, Code of 1924, public limiting such assessment to one half of the improve- privately owned property between the street ments: void improved and the next street. The defendant's assessment. contention is that the objections filed with the city council did not raise this question. We think, however, that, as the district plan was not adopted, the council was wholly without authority or jurisdiction to 2. MUNICIPAL make the assessment. The assessment upon CORPORA- plaintiff's lots, therefore, is absolutely void, TION'S: and should be annulled though no objections public whatever were filed with the city council; and improve- it may be annulled on appeal, as well as by ments: void independent suit in equity. In re Appeal of assessment: McLain, 189 Iowa 264; Hauge v. City of Des remedies Moines, 197 Iowa 907; Mann v. City of Onawa, available. 199 Iowa 430; Northern Light Lodge v. Town ofMonona, 180 Iowa 62; Royal v. City of Des Moines, 195 Iowa 23.

II. It is objected that the bond given on the appeal to the district court did not have upon it the clerk's indorsement of approval, and therefore was not approved, and the district court had no jurisdiction. One of the steps necessary 3. MUNICIPAL to the perfecting of an appeal is the filing of CORPORA- "an appeal bond, approved by the clerk of said TIONS: court * * *" Section 6064, Code of 1924. Our public attention has not been called to any statute improve- which, in the case of appeal bonds, specifically ments: requires an indorsement or other record of assessment: approval to be made, although such record would appeal: be the the better practice. State v. Briggs, 68 informal Iowa 416, 422. Official bonds are specifically approval of required to be indorsed, in case of approval. bond. Section 1074, Code of 1924. The statute provides in the case of pleadings that they shall not be considered as filed until memorandum is made in the appearance docket. This is held to be mandatory. Nickson v. Blair, 59 Iowa 531. But even in that case, the court may order the pleading to be entered as filed at the time it was delivered to the clerk and marked "filed." Snell v. Dubuque S.C.R. Co., 88 Iowa 442. It is shown by the testimony of the clerk and the attorney who represented the plaintiff in presenting this bond, with others, that the clerk, at the time they were so presented, said that he approved them, and that he accepted and filed them. The clerk testified that, if he does not approve a bond, he does not accept it or stamp it "filed." The bond did have upon it the filing indorsement. It appears, therefore, without contradiction, that the clerk did in fact exercise his judgment favorably to, and did accept, the bond, and treated it as approved. The defect alleged is merely the clerical or ministerial one of not making a record of his judgment upon it.

We are of the opinion that an indorsement of approval was not indispensable, and that the absence of it did not deprive the court of jurisdiction. Hanaw v. Bailey, 83 Mich. 24 (46 N.W. 1039, 9 L.R.A. 801); Leach v. Altus St. Bank, 56 Okla. 102 (155 P. 875); 3 Corpus Juris 1175; 4 Corpus Juris 1259; Nourse v.Weitz, 120 Iowa 708; State v. Briggs, 68 Iowa 416.

The judgment is — Affirmed.

EVANS, FAVILLE, and ALBERT, JJ., concur.

De GRAFF, C.J., and STEVENS, J., dissent as to Division II.